The Many Ways In Which Fashion Copyrights Will Harm The Fashion Industry

from the stop-it-before-it's-too-late dept

Earlier this year, we pointed to a video presentation by Johanna Blakley about why the fashion industry has thrived without copyright. The argument certainly wasn't new -- as we've been discussing (for nearly a decade) that industry as a model of an industry that innovates creatively without copyright. However, it certainly was timely, as the fashion industry (with a campaign led by someone who has been caught copying others' designs) has been able to get a new bill for fashion copyrights introduced, and the buzz in DC is that this time it might actually pass.

So what does Blakley have to say about the new bill? Well, she's put together a wonderfully written, if depressing, look at why this law simply is not needed, and how it will almost certainly harm the industry and many fashion designers:

It's worrisome to think about the frivolous litigation that such legislation could introduce (that's not exactly what our over-taxed court system needs right now) as well as the ethical problems associated with conferring an arbitrary right of ownership to any Joe Blow who decides to lay claim to a certain combination of design features which used to belong to the public domain.

Right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season's look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It's a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn't as unique as they claim.

The scope of items that the bill intends to protect is larger than you probably think. It's not just ornate red carpet gowns: it also includes coats, gloves, shoes, hats, purses, wallets, duffel bags, suitcases, tote bags, belts, eyeglass frames and underwear. I can only imagine the lengths to which some companies with deep pockets will go to lay claim to an exclusive right to an iconic popular design.

The sad thing is that just about everyone will suffer (well, except for lawyers). Consumers will pay higher prices (someone has to pay those legal fees) and they won't have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices. Designers who can't afford legal counsel will worry about being accused of copying and they probably won't be able to sue if someone copies them because, well, litigation is expensive.

The real travesty in all of this is how there is a total lack of evidence that this new copyright is needed. No one has shown a single shred of evidence to support this. It's the same point that we've made over and over again when it comes to copyright law. If you are going to demand government granted monopoly protections, shouldn't there be a relatively high burden to prove the need for one? Instead, we seem to be going in the other direction. Those seeking such protections demand them, claim they're necessary, and argue that it's somehow "unfair" if they don't have such protections. Blakley points out how unnecessary this new copyright is, quite nicely:

But just because copying is legal doesn't mean it's acceptable. In order to succeed, designers have to develop a signature style -- a look that everyone will instantly recognize as theirs. Designers who have reputations as innovators don't want to be accused of copying, so they have a strong incentive to come up with something new every season that's unique to them and their signature style.

There are several reasons why the fast fashion giants like H&M, Zara, Forever 21 and Topshop haven't destroyed the business of high-end designers. One obvious reason is that the customer who shops for the $19.99 version of a Chanel skirt is quite simply not the same customer who buys clothing in a Chanel boutique. That's one reason that so many A-list designers -- including Karl Lagerfeld and Vera Wang -- have decided to knock themselves off and create lines for lower-end retailers like Target and Kohl's. Far from cannibalizing their own product sales, these designers realized that they could expand their clientele and their brand by marketing a variety of products at vastly different price-points.

Over and over again, the courts have decided not to give extra protection to the designers who have complained about fast fashion knock-offs because designers have not been able to demonstrate that it has hurt their business.

In fact, the fast fashion industry has actually strengthened the fashion industry overall since it has accelerated the market for global fashion. The big bonus for high-end designers is that their influential designs become influential even faster than before. And because trends are established so quickly, fashionistas who buy the products that top designers sell have an incentive to move on to the next new thing when the masses have settled on the trendy knock-off. By the time the next season comes around, designers must compete all over again for customers hungry for the new designs that best capture the zeitgeist.

Those are just two snippets from an excellent, if disappointing, take on this new law that is nothing less than monopoly rent seeking by a few powerful interests in the fashion industry. It's no surprise that the fashion giants are seeking such protectionist policies. The real shame should be in Senator Chuck Schumer for falling for this over and over again (oh look, fashion industry giants happen to be in his state...), as well as those who co-sponsored the bill: Senators Orrin Hatch, Lindsey Graham, Sheldon Whitehouse, Kirsten Gillibrand, Olympia Snowe, Barbara Boxer, Dianne Feinstein, Ben Cardin, Herb Kohl and Kay Bailey Hutchison. If these are your senators, let them know how much you disapprove of such blatant protectionism that will harm everyone.

Only good things I can think of

This will force the fashion industry to slow down to a crawl allowing everyone to keep up with fashion. This will also allow people to use their clothes for longer then two months before they go out of stile. If copyright elsewhere is an example, this will allow people to not have to buy cloths for years and still be up to date.

Great more copyright nonsense. Blakely got it in one. If this comes to pass you can expect to see an arms race of copyright hoarding (much like what is happening in the tech and pharma industries now with patents). And this arms race is going to get hot and heavy real fast because whoever holds the most copyrights will have the ability to literally shut down most attempts to look at current/past styles for inspiration for future ideas.

And a few years after that you can expect the fashion industry to come to grinding halt. Why? Because the ones with the most copyrights will stop innovating because their copyrights will "protect" them from losing money and the ones who don't have copyrights will be shut out because everything they try to do will be copyrighted.

Honestly I think that is what this is all about. The large names in the fashion industry have seen how patents/copyrights have "protected" (read: saved them the trouble of having to innovate to beat the competition) other industries and they think they need similar "protection". The Wangs, Chanels, and Lagerfields of the industry want to be lazy but still make loads of money and this is their way of doing it.

taxes taxes and more taxes

Have you complianed to your congress critter today?

All I can say is *Ugggg......*

Called my congress critter and expressed my deep displeasure at their being a cosponsor of this ludicrous bill.

As expected the aide had no idea what I was talking about.

More of us need to let them know that we are watching. I think too many of them imagine (probably correctly so) that most of their constituents don't know what they are doing and so don't/won't complain.

A little anti-constituent law here, a little campaign contribution there.

Re: Why not? It's worked well so far...

Of course then you'll be able to blame file sharing for the piracy of designs and the lack of sales. Sharing patterns no doubt with a world that doesn't do much sewing anymore.

Hey! That's what's going on! They're in cahoots with the sewing machine industry and the knitting industry so that they can be reborn en masse! Then they can sue every ma and pa (realistically ma) who sew a knock off of a Lagerfeld design from a pattern downloaded via bittorrent.

I can see it all now. A nice big industrial circle jerk!

Oh, and I'm sure Lagerfeld hates men with as much gusto as he does women judging by the rags he wears and forces his glaring, rake thin parody of women to wear at his shows.

meh

i'm against this kind of legislation, but in a way i'm almost ok with it. not because i think it would help anyone out; i'd expect it to deal a terrible blow to the fashion industry and fashionistas and i think it would even have negative repercussions for ordinary people like me. but those negative consequences are actually why i think giving copyright to fashion would be ok.

think of how fantastic a case study it would be. take a thriving creative industry that operates almost entirely without copyright, introduce only a single extra variable in copyright, and see what happens. when virtually everyone involved, from designer to consumers to media (will fashion magazines have to clear clothing rights just to display photographs of them?), sees all the negative consequences, it'll be very difficult to blame those consequences on anything but copyright.

you have a very very stark contrast: without copyright an industry thrives, and with copyright the same industry has serious problems. rarely in the real world do you get such a fantastically clear social experiment.

so while in reality i'm very opposed to extending copyright to cover fashion, if fashion does get copyright, at least we'll get this grand experiment. and hopefully the results will convince more people that copyright is not necessarily a good thing.

Idly -just musing- I'm wondering if it might have another unintended effect, that of designers giving homage to their inspiration source. I'm with Blakely, don't get me wrong, but it's possible that designers may begin to credit their sources the way that authors must cite each others ideas. Rather than destroying "rare materials", designers may publish them.

I do disagree in another sense. It would be pretty hard to get rid of the evidence derived from "rare materials". Trust me, there are people out there who have nothing else to do than to be experts of historical and vintage apparel. Some have collections better than any library in the world. I don't know that much about it by comparison but even I can tell you if x unique feature comes from so and so's book down to edition and copyright date. Good luck to anyone trying to prove something has never been done before. If the defense gets a good expert witness, the plaintiff will need a LOT of luck.

I've often wanted to copy elements from vintage styles but it felt dishonest. However, if I wanted to protect a design of mine from being the target of a lawsuit from someone who might have copied me or had the same idea, citing one's design sources and publishing them on one's website could prevent lawsuits. If I show images that prove my design is not original, it will also hold that a plaintiff's copy isn't either.

Kay Bailey Hutchison's Response

I emailed KBH (one of my senators and a cosponsor of the bill) a well-written, thoughtful and well-argued note about her bill.

I received "her" "response" yesterday. It was a canned email about Intellectual Property mentioning broadband and other equally unrelated topics. It was clearly a canned response for any constituent inquiry regarding intellectual property as a whole. It was not specific to my inquiry, answered none of my questions, and in fact was not even specific to the bill which she put her own name on.

The big problem is not with specific designs of, say, a particular Gucci suit. The real problem will be when there are millions of separate copyrights on every single design feature. For example, try dreaming up a fresh new "collar" when there are dozens of different people holding different copyrights on every conceivable style of collar: big, small, round, straight, sloping, frilled, pointy, green, gold, striped, etc.